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Resolving disputes by ENE means….

As of 1 October 2015, the Court’s fundamental general powers of case management set out in the English Civil Procedure Rules were enhanced with the inclusion of a new provision on Early Neutral Evaluation (“ENE”), a form of alternative dispute resolution.  The rule now expressly permits the Court to hear an ENE with the aim of helping the parties settle the case.

ENE involves a neutral third party (which could be a judge or another third party) considering and assessing the strengths and weaknesses of parties’ cases and provide an informal assessment of the possible outcome. The decision is not binding and does not focus on commercial considerations, but provides an opportunity for the parties to present their legal position and focus on the real issues in the case at an early stage, and may be a catalyst for settlement.  As one judge described it, “a judge will evaluate the respective parties’ cases in a direct way and may well provide an authoritative (albeit provisional) view of the legal issues at the heart of the case and an experienced evaluation of the strength of the evidence available to deploy in addressing those legal issues. The process is particularly useful where the parties have very differing views of the prospect of success and perhaps an inadequate understanding of the risks of litigation itself.”

The Court’s jurisdiction to make ENE orders now having been clarified, it will certainly raise awareness of the process. That is certainly a good thing and it will be interesting to see whether the Courts now seek to impose ENE on parties rather than relying upon parties voluntarily subscribing to the practice. Time will tell, however, if the new provision increases the broader use of ENE and, if so, the extent to which it successfully leads to the earlier settlement of disputes.